Prior to becoming a Westchester County
Court Judge I served for six years as a Judge on the Yonkers City Court, the
busiest Court in Westchester County, New York State. My favorite Court was
Small Claims Court where I handled nearly 3000 cases and published sixty-three
decisions in the New York Law Journal2Those consumer law and tenant law decisions are categorized by subject matter
and are available on my web site3as are many of my over 190 published consumer law articles. 4During 2000 and 2001 I have served as an Acting Family Court Judge and have
published seven family law decisions5and two family law articles. 6

My approach in Small Claims Court was to
bring the parties into Court and ask both sides a series of questions helping
each to formulate their positions. More often than not consumers had little
understanding of the rights and remedies available to them under a host of
Federal and New York State consumer protection statutes.

Small Claims Courts

New York State's Small Claims Courts
provide consumers with a cost effective legal forum in which to seek money
damages up to $3,000.00. The philosophical genesis of Small Claims Courts was
"' equal access to justice. '"7It was hoped that Judges or arbitrators would be able to expeditiously do "
substantial justice " without the burden of motion practice, discovery, rigid
evidentiary rules and specific pleading requirements. 8There is an expanding body of Small Claims Court law now available to
consumers, attorneys, arbitrators and Judges including manuals9, law journals10, articles11, and web sites12.

General Business Law § 349: Deceptive
Business Practices

Many small claims arise from defective or
misrepresented goods and services. Small Claims Courts provide a cost effective
forum and allow consumers to enforce their rights under a variety of consumer
protection statutes 13The most popular of New York State's many consumer protection statutes is
General Business Law § 349 [ " GBL § 349 " ] which prohibits deceptive and
misleading business practices.

GBL § 349 allows consumers to sue for
$50.00 or actual damages which may be trebled up to $1,000.00 upon a finding of
a " wil(ful) or know(ing) violat(ion). "14Attorneys fees and costs may be recovered as well. As long as the deceptive business practice has " a broad impact on consumers at large 15and constitutes " consumer-oriented conduct "16proving a violation of GBL § 349 is straight forward. As stated in BNI N.Y.
v. DeSanto "17
(GBL § 349 ) is a broad, remedial statute... directed towards giving consumers a
powerful remedy. The elements of a violation of ( GBL § 349 ) are (1) proof
that the practice was deceptive or misleading in a material respect and (2)
proof that plaintiff was injured...There is no requirement under ( GBL § 349 )
that plaintiff prove that defendant's practices and acts were intentional,
fraudulent or even reckless. Nor does plaintiff have to prove reliance upon
defendant's deceptive practices ".

Threshold Of Deception

Initially GBL § 349 had a low threshold for
a finding of deception, i.e., misleading and deceptive acts directed to " the
ignorant, the unthinking and the credulous who, in making purchases, do not
stop to analyze but are governed by appearances and general impressions " [Guggenheimer
v. Ginzburg18
Recently, the Court of Appeals raised the threshold to those misleading and
deceptive acts " likely to mislead a reasonable consumer acting reasonably
under the circumstances " [ Oswego Laborers' Local 214 Pension Fund v.
Marine Midland Bank, N.A19] .

Deceptive Business Practices

GBL § 349 applies to a broad spectrum of
goods and services
[ Karlin v. IVF America20
( GBL 349... " on (its) face appl(ies) to virtually all economic activity and
(its) application has been correspondingly broad...The reach of (this) statute
' provides needed authority to cope with the numerous, ever-changing types of
false and deceptive business practices which plague consumers in our State '"
)].

Types Of Goods & Services Covered

The types of goods and services which GBL
349 applies to include the following:

(23) Health Insurance [Makastchian v.
Oxford Health Plans, Inc.57( practice of terminating health insurance policies without providing 30 days
notice violated terms of policy and was a deceptive business practice because
subscribers may have believed they had health insurance when coverage had
already been canceled )];

(28) Budget Planning [People v. Trescha
Corp.63( company misrepresented itself as a budget planner which " involves debt
consolidation and...negotiation by the budget planner of reduced interest rates
with creditors and the cancellation of the credit cards by the debtors...the
debtor agrees to periodically send a lump sum payment to the budget planner who
distributes specific amounts to the debtor's creditors " )].

Warranty Of Habitability

Tenants in Spatz v. Axelrod Management 64and coop owners in Seecharin v. Radford Court Apartment Corp.65brought actions for damages done to their apartments by the negligence of
landlords, managing agents or others, i.e., water damage from external or
internal sources. Such a claim may invoke Real Property Law § 235-b [ " RPL §
235-b " ] , a statutory warranty of habitability in every residential lease "
that the premises...are fit for human habitation ". RPL § 235-b " has provided
consumers with a powerful remedy to encourage landlords to maintain apartments
in a decent, livable condition "66and may be used affirmatively in a claim for property damage 67or as a defense in a landlord's action for unpaid rent . 68Recoverable damages may include apartment repairs, loss of personal property
and discomfort and disruption. 69

Door-To-Door Sales

" Some manufacturers...favor door-to-door
sales ( because ) ...the selling price may be several times greater than...in a
more competitive environment (and)...consumers are less defensive...in their
own homes and...are, especially, susceptible to high pressure sales tactics "70 Personal Property Law [ " PPL " ] §§ 425-431 "' afford(s)
consumers a ' cooling-off' period to
cancel contracts which are entered into as a result of high pressure
door-to-door sales tactics'"71 PPL § 428 provides consumers with rescission rights should a salesman fail to
complete a Notice Of Cancellation form on the back of the contract. PPL § 428
has been used by consumers in Rossi v. 21st Century Concepts,
Inc. 72 [ misrepresented pots and pans costing $200.00 each ],Kozlowski v. Sears73 [ vinyl windows hard to open, did not lock properly and leaked ] and in Filpo
v. Credit Express Furniture Inc74[ unauthorized design and fabric color changes and defects in overpriced
furniture ]. Rescission is also appropriate if the Notice of Cancellation form
is not in Spanish for Spanish speaking consumers. 75A failure to " comply with the disclosure requirements of PPL 428 regarding
cancellation and refund rights " is a per se violation of GBL 349 which
provides for treble damages, attorneys fees and costs. 76 In addition PPL 429(3) provides for an award of attorneys fees and costs. 77

Telemarketing

It is quite common for consumers to receive
unsolicited phone calls at their homes from mortgage lenders, credit card
companies and the like. Many of these phone calls originate from automated
telephone equipment or automatic dialing-announcing devices, the use of which
is regulated by Federal and New York State consumer protection statutes.

Federal Telemarketing Rule

On the Federal level the Telephone Consumer
Protection Act 78 [ TCPA ] prohibits users of automated
telephone equipment " to initiate any telephone call to any residential
telephone line using an artificial or prerecorded voice to deliver a message
without express consent of the called party "79 The purpose of the TCPA is to provide " a remedy to consumers who are subjected
to telemarketing abuses and ' to encourage consumers to sue and obtain monetary
awards based on a violation of the statute. ' "80 The TCPA may be used by consumers in New York State Courts including Small
Claims Court [Kaplan v. Democrat & Chronicle81;Shulman v. Chase Manhattan Bank82 ( TCPA provides a private right of action which may be asserted in New York
State Courts )]. Some Federal Courts have held
that the states have exclusive jurisdiction over private causes of action
brought under the TCPA 83while some scholars have complained that " Congress intended for private enforcement
actions to be brought by pro se plaintiffs in small claims court and
practically limited enforcement to such tribunals. "84 Under the TCPA consumers may recover their actual monetary loss for each
violation or up to $500.00 in damages, whichever is greater. In Kaplan v.
Life Fitness Center85 the Court found " that plaintiff is entitled to damages of $500 for the TCPA
violation ( and ) an additional award of damages of $500 for violation of the
federal regulation. " The Court may treble damages upon a showing that defendant willfully and knowingly
violated "86 the
Act.

New York's Telemarketing Rules

On the State level, General Business Law §
399-p [ " GBL § 399-p " ] " also places
restrictions on the use of automatic dialing-announcing devices and placement
of consumer calls in telemarketing "87 such as requiring the disclosure of the nature of the call and the name of the
person on whose behalf the call is being made. A violation of GBL § 399-p
allows recovery of actual damages or $50.00, whichever is greater, including
trebling upon a showing of a wilful violation. Consumers aggrieved by telemarketing abuses
may sue in Small Claims Court and recover damages under both the TCPA and GBL §
399-p Kaplan v. First City Mortgage88 ( consumer sues telemarketer in Small Claims Court and recovers $500.00 for a
violation of TCPA and $50.00 for a violation of GBL § 399-p ); Kaplan v.
Life Fitness Center 89 consumer recovers $1,000.00 for violations of TCPA and $50.00 for a violation
of GBL § 399-p )].

No Telemarketing Sales Call Registry

Under General Business Law § 399-z [ " GBL
§ 399-z " ], known as the " Do Not Call " rule, consumers may prevent
telemarketers from making unsolicited telephone calls by filing their names and
phone numbers with a statewide registry. " No telemarketer...may make...any
unsolicited sales calls to any customer more than thirty days after the customer's
name and telephone number(s)... appear on the then current quarterly no
telemarketing sales calls registry ". Violations of this rule may subject the
telemarketer to a maximum fine of $2,000.00. In addition " [n]othing ( in this
rule ) shall be construed to restrict any right which any person may have under
any other statute or at common law ".

Telemarketing Abuse Prevention Act

Under General Business Law § 399-pp [ " GBL
§ 399-pp " ] known as the Telemarketing And Consumer Fraud And Abuse Prevention
Act, telemarketers must register and pay a $500 fee [ GBL § 399-pp(3) ] and post a $25,000 bond "
payable in favor of ( New York State ) for the benefit of any customer injured
as a result of a violation of this section " [ GBL § 399-pp(4) ]. The certificate
of registration may be revoked and a $1,000 fine imposed for a violation of
this section and other statutes including the Federal TCPA. The registered
telemarketer may not engage in a host of specific deceptive [ GBL §
399-pp(6)(a) ] or abusive [ GBL § 399-pp(7) ] telemarketing acts or practices,
must provide consumers with a variety of information [ GBL § 399-pp(6)(b)] and
may telephone only between 8:00AM to 9:00PM. A violation of GBL § 399-pp is
also a violation of GBL § 349 and also authorizes the imposition of a civil
penalty of not less than $1,000 nor more than $2,000.

Pyramid Schemes

"' ( a pyramid scheme ) is one in which a
participant pays money...and in return receives (1) the right to sell products,
and (2) the right to earn rewards for recruiting other participants into the
scheme. '"90Pyramid schemes are sham money making schemes which prey upon consumers eager
for quick riches. General Business Law § 359-fff [ " GBL §
359-fff " ] prohibits " chain distributor schemes " or pyramid
schemes voiding the contracts upon which they are based. Pyramid schemes were
used in Brown v. Hambric91to sell travel agent education programs [ " There is nothing new ' about NU-Concepts. It is an old
scheme, simply, repackaged for a new audience of gullible consumers mesmerized
by the glamour of travel industry and hungry for free or reduced cost travel
services " ] and in C.T.V., Inc. v. Curlen92to sell bogus " Beat The System Program " certificates. While, at least, one
Court has found that only the Attorney General may enforce a violation of GBL
359-fff 93other Courts have found that GBL 359-fff gives consumers a private right of
action 94a violation of which also constitutes a per se violation of GBL 349 which
provides for treble damages, attorneys fees and costs 95.

Home Improvement Contractors

Homeowners often hire home improvement
contractors to repair or improve their homes or property. Home improvement
contractors must, at least, be licensed by the Department of Consumer Affairs
of New York City, Westchester County, Suffolk County, Rockland County, Putnam
County and Nassau County if they are to perform services in those Counties [
New York Civil Practice Law And Rules § 3015(e) [ " CPLR § 3015(e) " ] ].
Should the home improvement contractor be unlicenced he will be unable to sue
the homeowner for non-payment for services rendered [Routier v. Waldeck96( " The Home Improvement Business provisions...were enacted to safeguard and
protect consumers against fraudulent practices and inferior work by those who
would hold themselves out as home improvement contractors " );Cudahy v.
Cohen97( unlicenced home improvement contractor
unable to sue homeowner in Small Claims Courts for unpaid bills)].

Home improvement contractors who are
unlicenced prior to commencing a lawsuit against a homeowner may not cure this
standing defect by obtaining a license prior to a hearing in Court [Chosen
v. Syz98( " unlicenced contractor is barred any recovery for breach of contract or in
quantum meruit. This regardless of whether the work performed was satisfactory,
whether the failure to obtain the license was willful or, even, whether the
homeowner knew of the lack of the license and planned to take advantage of its
absence. "99Zandell
v. Zerbe
100( home
improvement contractor must have a valid
license when the work is done and when a lawsuit in commenced against the
homeowner )].

Truth In Lending

Consumers may sue in Small Claims Court for
a violation of the Federal Truth In Lending Act, 15 U.S.C.A. §§ 1601-1665 [ " TILA " ] and recover appropriate
damages [Community Mutual Savings Bank v. Gillen
101( borrower counterclaims in Small Claims Court for violation of TILA and is
awarded rescission of loan commitment with lender and damages of $400.00 )]. "
TILA ( protects consumers ) from the inequities
in their negotiating position with respect to credit and loan institutions...(
TILA ) requir(es) lenders to provide standard
information as to costs of credit including the annual percentage rate, fees
and requirements of repayment...( TILA ) is liberally construed in favor of the
consumer...The borrower is entitled to rescind the transaction ' until midnight
of the third business day following the consummation of the transaction or the
delivery of the information and rescission forms required ...together with a
statement containing the material disclosures required... whichever is
later...The consumer can opt to rescind for any reasons, or for no reason "102TILA has been held to preempt Personal Property Law provisions governing retail
instalment contracts and retail credit agreements [Albank, FSB v. Foland
103].

Lost Overcoats

" For over 100 years consumers have been
eating out at restaurants, paying for their meals and on occasion leaving
without their simple cloth overcoats...mink coats...mink jackets...racoon
coats...Russian sable fur coats...leather coats and, of course, cashmere
coats..."104 In DiMarzo
v. Terrace View
105restaurant personnel encouraged a patron to remove his overcoat and then
refused to respond to a claim after the overcoat disappeared from their
coatroom. In response to a consumer claim arising from a lost overcoat the
restaurant may seek to limit its liability to $200.00 as provided for in
General Business Law § 201 [ " GBL § 201 " ]. However, a failure to comply with
the strict requirements of GBL § 201 [ "' as to property deposited by...patrons
in the...checkroom of any...restaurant, the delivery of which is evidenced by a
check or receipt therefor and for which no fee or charge is exacted...'"106] allows the consumer to recover actual damages upon proof of a bailment and/or
negligence 107

No Cash Refund Policies

Some stores refuse to refund the consumer's
purchase price in cash upon the return of a product [ " Merchandise, in New
Condition, May be Exchanged Within 7 Days of Purchase for Store Credit...No
Cash Refunds or Charge Credits "108 In Baker v. Burlington Coat Factory Warehouse109a clothing retailer refused to refund the consumer's cash payment when she
returned a shedding and defective fake fur two days after purchase. General
Business Law § 218-a [ " GBL § 218-a " ] permits retailers to enforce a no cash
refund policy if there are a sufficient number of signs notifying consumers of
" its refund policy including whether it is ' in cash, or as credit or store
credit only '"110If,
however, the product is defective and there has been a breach of the implied
warranty of merchantability [ U.C.C. § 2-314 ] then consumers may recover all
appropriate damages including the purchase price in cash [ U.C.C. § 2-714 ] 111. In essence, U.C.C. § 2-314 preempts 112 GBL § 218-a [Baker v. Burlington Coat Factory Warehouse113 ( defective shedding fake fur );Dudzik v. Klein's All Sports114 ( defective baseball bat ) ]. It has been held that a " failure to inform
consumers of their statutory right to a cash or credit card charge refund when
clothing is defective and unwearable " is a violation of GBL 349 which provides
for treble damages, attorneys fees and costs.115

False Advertising

Consumers who rely upon false advertising
and purchase defective goods or services may sue for misrepresentation. In
addition to common law claims for fraudulent misrepresentation the consumer may
assert a violation of General Business Law § 350 [ " GBL § 350 " ] [ Card v.
Chase Manhattan Bank116( bank falsely misrepresented that its LifePlus Credit Insurance plan would pay
off credit card balances were the user to become unemployed )]. GBL § 350
prohibits false advertising which " means advertising, including labeling, of a
commodity...if such advertising is misleading in a material respect...( covers
)....representations made by statement, word, design, device, sound...but
also... advertising ( which ) fails to reveal facts material "117.
GBL § 350 covers a broad spectrum of misconduct [Karlin v. IVF America118 ( " ( this statute ) on ( its ) face appl(ies) to virtually all economic
activity and ( its ) application has been correspondingly broad " )]. Proof of
a violation of GBL 350 is simple, i.e., " the mere falsity of the advertising
content is sufficient as a basis for the false advertising charge " [People
v. Lipsitz119 (
magazine salesman violated GBL § 350; " ( the ) ( defendant's ) business practice is
generally ' no magazine, no service, no refunds " although exactly the contrary
as promised " ].

Furniture Delivery Dates

" In order to induce a sale furniture and
appliance store salesman often misrepresent the quality, origin, price, terms
of payment and delivery date of ordered merchandise "120
In Walker v. Winks Furniture121a salesman promised delivery of new furniture within one week and then refused
to return the consumer's purchase price when she canceled two weeks later
unless she paid a 20% cancellation penalty. GBL § 396-u protects consumers from
unscrupulous salesmen who promise that merchandise will be delivered by
specific date when, in fact, it is not. A violation of GBL § 396-u [ failing to
disclose an estimated delivery date in writing when the order is taken [ GBL §
396-u(2) ], failing to advise of a new delivery date and giving the consumer
the opportunity to cancel [ GBL § 396-u(2)(b) ], failing to honor the
consumer's election to cancel without imposing a cancellation penalty [ GBL §
396-u(s)(c) ], failing to make a full refund within two weeks of a demand
without imposing a cancellation penalty [ GBL § 396-u(2)(d) ]] allows the
consumer to rescind the purchase contract without incurring a cancellation
penalty 122. A
violation of GBL 396-u is a per se violation of GBL 349 which provides for
treble damages, attorneys fees and costs 123In addition, GBL 396-u(7) provides for a trebling of damages upon a showing of
a wilful violation of the statute 124.

Automotive Parts Warranties

" The extended warranty and new parts
warranty business generates extraordinary profits for the retailers of cars,
trucks and automotive parts and for repair shops. It has been estimated that no
more than 20% of the people who buy warranties ever use them... Of the 20% that
actually try to use their warranties...
( some ) soon discover that the real costs
can easily exceed the initial cost of the warranty certificate "125. In Giarratano v. Midas Muffler126,
Midas would not honor its brake shoe warranty unless the consumer agreed to pay
for additional repairs found necessary after a required inspection of the brake
system. General Business Law § 617(2)(a) [ " GBL § 617(2)(a) " ] protects
consumers who purchase new parts or new parts' warranties from breakage or a
failure to honor the terms and conditions of a warranty [ " If a part does not
conform to the warranty...the initial seller shall make repairs as are
necessary to correct the nonconformity "127, ]. A violation of GBL 617(2)(a) is a per se violation of GBL 349 which provides
for treble damages, attorneys fees and costs 128

Cars, Cars, Cars

There are a variety of consumer protection
statutes available to purchasers and lessees of automobiles, new and used. A
comprehensive review of five of these statutes [ GBL § 198-b 129( Used Car Lemon Law ), express warranty 130 ,
implied warranty of merchantability 131 ( U.C.C. §§ 2-314, 2-318 ), Vehicle and Traffic Law [ V&T ] § 417, strict
products liability 132 ] appears in Ritchie v. Empire Ford Sales, Inc.133a case involving a used 1990 Ford Escort which burned up 4 ˝ years after being
purchased because of a defective ignition switch. A comprehensive review of two
other statutes [ GBL § 198-a ( New Car Lemon Law ) and GBL § 396-p ( New Car
Contract Disclosure Rules )] appears in Borys v. Scarsdale Ford, Inc.134 a case involving a new Ford Crown Victoria, the hood, trunk and both quarter
panels of which had been negligently repainted prior to sale.

New Car Lemon Law

New York State's New Car Lemon Law [ GBL §
198-a ] provides that " If the same problem cannot be repaired after four or
more attempts; Or if your car is out of service to repair a problem for a total
of thirty days during the warranty period; Or if the manufacturer or its agent
refuses to repair a substantial defect within twenty days of receipt of notice
sent by you...Then you are entitled to a comparable car or refund of the purchase
price " [Borys v. Scarsdale Ford, Inc135 ]. Before commencing a lawsuit seeking to enforce the New Car Lemon Law the
dealer must be given an opportunity to cure the defect [Chrysler Motors
Corp. v. Schachner136 ( dealer must be afforded a reasonable number of attempts to cure defect )].

Used Car Lemon Law

New York State's Used Car Lemon Law [ GBL §
198-b ] provides limited warranty protection for ninety days or 4,000 miles,
whichever comes first, for vehicles with odometer readings of less than 36,000 Cintron v. Tony Royal Quality Used Cars, Inc.
137( defective 1978 Chevy Malibu returned within thirty days and full refund awarded )]. Used car
dealers must be given an opportunity to cure a defect before the consumer may
commence a lawsuit enforcing his or her rights under the Used Car Lemon Law [Milan v. Yonkers Avenue Dodge, Inc.
138( dealer must have opportunity to cure defects in used 1992 Plymouth Sundance )
].

The Used Car Lemon Law does not preempt
other consumer protection statutes [Armstrong v. Boyce
139] and has been applied to used vehicles with coolant leaks [Fortune v.
Scott Ford, Inc. 140], malfunctions in
the steering and front end mechanism [Jandreau v. LaVigne
. 141], and stalling and engine knocking Ireland v. J.L.'s Auto Sales, Inc.
142

Implied Warranty Of Merchantability

Both new and used cars carry with them an
implied warranty of merchantability [ U.C.C. §§ 2-314, 2-318 ][Denny v.
Ford Motor Company
143 ]. Although broader in scope than the Used Car Lemon Law the implied warranty
of merchantability does have its limits, i.e., it is time barred four years
after delivery
[ U.C.C. § 2-725; Hull v. Moore Mobile
Homes Stebra, Inc.
144 ( defective mobile home; claim time barred
)] and the dealer may disclaim liability under such a warranty [ U.C.C. § 2-316
] if such a disclaimer is written and conspicuous [Natale v. Martin
Volkswagen, Inc.145 ( disclaimer not conspicuous )].

Warranty Of Serviceability

Used car buyers are also protected by
Vehicle and Traffic Law § 417 [ " V&T § 417 " ] which requires used car
dealers to inspect vehicles and deliver a certificate to buyers stating that
the vehicle is in condition and repair to render, under normal use,
satisfactory and adequate service upon the public highway at the time of
delivery. V&T § 417 is a non-waiveable, nondisclaimable, indefinite,
warranty of serviceability which has been liberally construed [ Barilla v.
Gunn Buick Cadillac-GNC, Inc.146; Ritchie v. Empire Ford Sales, Inc. 147
dealer liable for Ford Escort that burns up 4 ˝ years after purchase )].

New Car Contract Disclosure Rules

In Borys v. Scarsdale Ford, Inc148a consumer demanded a refund or a new car after discovering that a new Ford
Crown Victoria had several repainted sections. The Court discussed liability
under GBL § 198-a ( New Car Lemon Law ) and GBL § 396-p(5) ( Contract
Disclosure Requirements ) [ " gives consumers statutory rescission rights ' in
cases where dealers fail to provide the required notice of prior damage and
repair(s)' ( with a )
' retail value in excess of five percent of
the lesser of manufacture's or distributor's suggested retail price '" ].

In Borys the Court dismissed the
complaint finding (1) that under GBL § 198-a the consumer must give the dealer
an opportunity to cure the defect and (2) that under GBL § 396-p(5) Small
Claims Court would not have jurisdiction [ money damages of $3,000 ] to force "
defendant to give...a new Crown Victoria or a full refund, minus appropriate
deductions for use ".

Magnuson-Moss Warranty Act & Leased
Vehicles

In Tarantino v. DaimlerChrysler Corp.149, DiCinto v. Daimler Chrysler Corp.150, and Carter-Wright v. DaimlerChrysler Corp.151 it was held that the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq.
applies to automobile lease transactions. " The Magnuson-Moss Warranty Act was,
in fact, directed at car manufacturers and their performance under new car
warranties...The characteristics of ( the ) lease, which are typical of those
offered today, place it squarely within the realm of an ownership equivalent
for the duration of the lease term; car leasing is both promoted by the
industry ( manufacturers and dealers ) and regarded by many consumers as an
alternate means of financing a new vehicle, which is less costly on a monthly
basis and which affords the option to purchase or not at its end ".

Pets, Pets, Pets

Disputes involving pet animals are often
brought in Small Claims Courts [ see e.g.,Mongelli v. Cabral152 ( " The plaintiffs ...and the defendants...are exotic bird lovers. It is their
passion for exotic birds, particularly, for Peaches, a five year old white
Cockatoo, which is at the heart of this controversy" );Mathew v. Klinger153 ( " Cookie was a much loved Pekinese who swallowed a chicken bone and died
seven days later. Could Cookie's life have been saved had the defendant
Veterinarians discovered the presence of the chicken bone sooner? " ); O'Brien v. Exotic Pet Warehouse, Inc.154 ( pet store
negligently clipped the wings of Bogey, an African Grey Parrot, who flew away
); Nardi v. Gonzalez155 ( " Bianca and Pepe are diminutive, curly coated Bichon Frises ( who were
viciously attacked by ) Ace...a large 5 year old German Shepherd weighing 110
pounds " )].

General Business Law §§ 752 et seq applies
to the sale of dogs and cats by pet dealers and gives consumers rescission
rights fourteen days after purchase if a licensed veterinarian
"
certifies such animal to be unfit for purchase due to illness, a congenital
malformation which adversely affects the health of the animal, or the presence
of symptoms of a contagious or infectious disease " [ GBL § 753 ]. The consumer
may (1) return the animal and obtain a refund of the purchase price plus the
costs of the veterinarian's certification, (2) return the animal and receive an
exchange animal plus the certification costs, or (3) retain the animal and
receive reimbursement for veterinarian services in curing or attempting to cure
the animal. In addition, pet dealers are required to have animals inspected by
a veterinarian prior to sale [ GBL § 753-a ] and provide consumers with
necessary information [ GBL §§ 753-b, 753-c ].

Several Courts have applied GBL
§§ 752 et seq in Small Claims Courts [ see e.g.,Fuentes v. United Pet
Supply, Inc.156( miniature pinscher puppy diagnosed with a luxating patella in left rear leg;
claims under GBL § 753 must be filed within fourteen days; claim valid under
UCC § 2-324 );Saxton v. Pets Warehouse, Inc.157 ( consumer's claims for unhealthy dog are
not limited to GBL § 753(1) but include breach of implied warranty of
merchantability under UCC § 2-714 );Smith v. Tate158 ( five cases involving sick German Shepherds ); Sacco v. Tate159( buyers of sick dog could not recover under GBL § 753 because they failed to
have dog examined by licensed veterinarian).

6 .See Dickerson, Threatening Telephone Calls and
Aggravated Harassment in the Second Degree: The Need for Legislation,
Women's Bar News Of The State Of New York, Vol. 11, No. 2, February 2001; Harassing
& Threatening Telephone Calls: The Need For Legislation To Meet The Needs
Of The Victims Of Domestic Violence, Westchester County Bar Association
Newsletter, Vol. 25, Issue 1, February 2001.

13 .See Lesser, Reviewing Consumer Fraud Statute
Cases in 2000, New York Law Journal, April 12, 2001, p. 1; Wagner, Limiting
Consumer Protection Law to Consumers, New York Law Journal, February 2,
2001, p. 1; Dickerson, Applying Consumer Protection Laws In Small Claims
Courts, New York Law Journal, Sept. 21, 1998, p. 1. See also Wagner, Using
the ' Reasonable Consumer ' Rule In Deceptive Practices Litigation, New
York Law Journal, Dec. 28, 1998, p. 1; Lesser, 1997 New York Consumer
Fraud Act Decisions, New York Law Journal, April 3, 1998, p. 1.

82 .Schulman v. Chase Manhattan Bank, 268
A.D. 2d 174, 710 N.Y.S. 2d 368 ( 2000 ). Compare: Charvat v. ATW,
Inc., 27 Ohio App. 3d 288, 712 N.E. 2d 805 ( 1998 )( consumer in small claims
court has no private right of action under TPCA unless and until telemarketer
telephones a person more than once in any 12-month period after the person has
informed the telemarketer that he or she does not want to be called ).

84 .Miller and Biggerstaff, Application of the
Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes ,
52 Federal Communications Law Journal, 667, 668-669 ( 2000 )( " The TCPA
presents ' an unusual constellation of statutory features '. It provides a
federal right to be free from certain types of telephone solicitations and
facsimiles ( faxes ), but it does permit a victim to enforce that right in
federal court. The TCPA's principal enforcement mechanism is a private suit,
but the TCPA does not permit an award of attorney fees to the prevailing party,
as do most other private attorney general statutes. The TCPA is practically
incapable of forming the basis of a class action..." ).